Turner v. Patterson , 160 Mass. 20 ( 1893 )

Barker, J.

The auditor’s report was some evidence that the five hundred and two dollars which it was agreed at the trial the plaintiff was entitled to recover if she was entitled to recover anything, was for moneys which the defendant had collected for the plaintiff, in contradistinction from moneys due her for services rendered to him. There is no count for money had and received, and the items under the count on an account annexed are for services. The defendant’s third request was directed to this state of the evidence and pleadings, and was not given in terms. But the jury were told, in substance, that the plaintiff could not recover unless they found a contract between the parties that the plaintiff should render the services to the defendant, and that if they were left in doubt, or the plaintiff had not so satisfied them, they should return a verdict for the defendant. This was, in substance, giving the ruling requested.

The fourth, fifth, and sixth requests also were substantially given in that portion of the charge which instructed the jury that if the money coming to the plaintiff was to be turned over by the defendant for general or charitable work, or for memorial windows, the plaintiff could not recover.

Exceptions overruled.